Foltz v. Johnson

16 Cal.App.5th 647

224 Cal.Rptr.3d 506

Kimberly FOLTZ, Plaintiff and Appellant,

v.Darryl Wayne JOHNSON, Defendant and Respondent.

B277995

Court of Appeal, Second District, Division 4, California.

Filed October 25, 2017

Grassini, Wrinkle & Johnson, Roland Wrinkle and Marshall Shepardson, Woodland Hills for Plaintiff and Appellant.

Law Office of Cleidin Z. Atanous and Cleidin Z. Atanous, Brea for Defendant and Respondent.

WILLHITE, J.

Plaintiff and appellant Kimberly Foltz suffered a paralyzing spinal injury after being thrown from her dirt bike during a ride with her then fiancé, defendant and respondent Darryl Johnson. Foltz filed an action alleging negligence against Johnson. Johnson successfully moved for summary adjudication on the basis of primary assumption of risk. Foltz concedes that primary assumption of risk applies here, but argues there are triable issues of material fact whether Johnson's conduct increased the risks inherent in off-road dirt bike riding, or engaged in reckless conduct outside the range of activities generally involved in dirt bike riding. We affirm.

BACKGROUND

The material facts surrounding the accident itself are largely undisputed: On September 4, 2011, Foltz and Johnson, were each riding their dirt bikes at the Dove Springs Off—Highway Vehicles Area (Dove Springs) in the Mojave Desert, when Foltz lost control of her dirt bike while riding down a steep sand dune. Her bike struck a rock, Foltz was thrown off and she sustained severe spinal injuries as a result.

Foltz's Experience with Riding Off—Road Dirt—Biking

Foltz and Johnson met in September 2010 and were engaged by September 2011. During their relationship, the couple frequently took their blended family to Gorman or Dove Springs, to camp and ride dirt bikes. Gorman's trails are well—established, hard dirt trails. The terrain and elevation at Dove Springs varies, ranging from easier hard—packed trails, to flat but sandy areas, and more difficult areas with soft, deep sand. Johnson is an experienced dirt bike rider, and often has ridden and is familiar with the terrain at Dove Springs. Foltz is not an experienced rider. Before she met Johnson, Foltz operated a dirt bike three times during junior high. After meeting Johnson, the first time Foltz operated a dirt bike herself was during her first trip to Dove Springs. On that occasion, she rode Johnson's 250cc dirt bike for about 30 minutes, and stayed on trails close to camp to avoid deep sand. She fell several times during that ride because Johnson's bike was too big and too heavy for her, and because the area was sandy. Subsequently, Foltz switched to a smaller (185cc) bike, which she was better able to control. Foltz understood that there is a risk that people who ride dirt bikes in sand or off-road may have accidents and suffer serious injuries.¹

Several months before September 2011, Foltz bought her own 185cc dirt bike. She rode her dirt bike during five weekend trips during the months before September 2011 on the dirt trails at Gorman. At Gorman, Foltz rode at an average speed of 30 miles per hour (mph). She took several falls during those rides, after dodging a bush or other object, but was not injured. Foltz was more comfortable riding at Gorman because, among other things, Dove Springs was for more advanced riders and she preferred Gorman's dirt trails to the sand at Dove Springs.

The Accident at Dove Springs

The family went camping at Dove Springs for Labor Day weekend 2011. On the afternoon of September 4, 2011, Johnson suggested that he and Foltz ride to a dry riverbed about an hour away. According to Foltz's deposition testimony, Foltz had told Johnson that she did not like riding in sand. He had seen her fall in the past when the sand got too deep. Johnson "guaranteed [her] that it was all road. That it was all flat and easy to ride on." Johnson had been on this ride about 15 times before. Foltz agreed to go and donned riding gear. They each rode their own dirt bikes. It was a sunny, clear day, without wind or dust. Foltz could see the road and dunes ahead.

Foltz and Johnson had an uneventful ride from camp to the riverbed, without falls or accidents. When they stopped at the riverbed, Johnson suggested they continue riding. Foltz agreed, after seeing that there was a trail heading in the direction Johnson wanted to travel. She rode behind Johnson on a riverbank trail.

Describing the events preceding her fall in her deposition, Foltz testified that after about two hours of riding on the riverbank trail, "[t]he trail started to end and I saw that we were headed towards a dune. And I told [Johnson] I'm not going up there. He said he guaranteed me there was a trail, just to follow him."

They "headed upwards" into the dune. Asked whether there was "a trail or did it look like it was sand," she testified, "[t]here was a trail up until I got up into the dune. And [I] realized that there was—the trail had ended. ... As I got up into [the dune], it ended."

When she first noticed the trail was ending, she was already slowing down because her bike was sinking in the sand. She denied that after she realized the trail had ended, she continued to "ride for some distance," but then added: "I was struggling just to keep my bike up. I had to speed up to get through the sand. Mr. Johnson kept riding in front of me. At one point he turned around and I signaled to him that I'm turning around. I'm like I'm finished. I'm not doing this. He's like you can do it. You can ride through here. And I said no. I'm heading back to the campground."

Asked to give her "best estimate how far in terms of distance [she] traveled where there was this trail," she replied, "About 10 minutes." Her testimony continued: "As soon as I stopped—I realized the faster I went, I could get out of the sand. And I was turning around, and I'd say I was going ... 30 to 40. I was speeding up because now I'm heading out of the dune and I'm going downhill."

She testified that "I got in the middle of [the dune]. It went higher and I stopped." She was then asked whether it was "accurate to state that from the bottom of the dune to the middle of the dune was all sand, no trail." She answered, "Yes," an apparent contradiction of her earlier testimony that the trail did not end until she got up into the dune. Under further questioning, she added that in riding from the bottom to the middle of the dune, she "was stuck and riding through it for about 10 minutes." Her bike was sinking the entire time she was in the dune, from the moment she began her ascent to the time she decided to turn around, and the only thing she could do to get out of the sand was to speed up. When she stopped, Johnson was ahead of her and encouraged her to continue. She refused, made a U-turn, and started to descend. Johnson started following her down the hill.

She was traversing the dune on a route different than the one she used to follow Johnson uphill. The terrain was very steep and sandy. Foltz was travelling at about 40 mph, was unable to control her bike and was afraid. In the dune, there were large grooves—a foot wide and six inches deep, with a hard surface, and deep sand and rocks along the side. The grooves appeared to have been carved out by downstream water from previous rains. Foltz's bike got stuck in a groove, and her back tire was "fishtailing" because of the sand. She was afraid because she could not stop or control her bike. Foltz hit and cleared (jumped over) a big rock at about 40 mph, and continued downhill. A few minutes later, her bike stopped when it hit a second rock, and Foltz was thrown over the handlebars. When she landed, her bike fell on her back, causing severe spinal injuries.

Foltz Sues Johnson

Foltz filed this personal injury action in December 2012, alleging negligence and four other causes of action. Johnson answered the complaint, generally denied all allegations and asserted over 30 affirmative defenses.

In December 2014, Johnson filed the Motion for Summary Adjudication (Motion) at issue here. The Motion was based, in pertinent part, on Johnson's seventeenth affirmative defense asserting that Foltz assumed the risk of injury by engaging voluntarily in the inherently dangerous sport of off-road biking, and there was no material factual dispute that he owed her a duty of care.

The Motion was heard in early March 2015, and continued for supplemental briefing as to certain issues. Following a second hearing on April 24, 2015, the trial court found that undisputed facts established that Foltz's negligence claim was barred, as a matter of law, by the doctrine of primary assumption of the risk,² and granted summary adjudication as to that claim. The remaining claims were dismissed and judgment entered in favor of Johnson in September 2016. This appeal followed.

DISCUSSION

Foltz contends the trial court erred in finding her negligence claim barred by the doctrine of primary assumption of risk, because Johnson failed to satisfy his burden to demonstrate that he did not increase the risks beyond those inherently associated with off-road dirt biking, or engage in conduct recklessly outside the range of ordinary activity involved in that sport or recreational activity.

1. Summary Judgment and the Standard of Review

"A motion for summary judgment ‘shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ( Code Civ. Proc., § 437c, subd. (c).) A defendant ‘has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action ... cannot be established ....’ (Id . subd. (p)(2).) Upon such a showing, ‘the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action ....’ (Ibid .)" ( Nalwa v. Cedar Fair, L.P . (2012) 55 Cal.4th 1148, 1153–1154, 150 Cal.Rptr.3d 551, 290 P.3d 1158 ( Nalwa ).) To...